As much as the Supreme Court sought to avoid this result, the question of homosexual “marriage” will now inevitably return to the Supreme Court. This is because there are now polar-opposite decisions in the courts of appeal, and therefore, a dispositive decision regarding the right of states to make their own decision regarding homosexual “marriage” will need to be decided by the Supreme Court. Yesterday, the Sixth Circuit Court of Appeals, which has federal law jurisdiction over the states of Kentucky, Ohio, Michigan, and Tennessee, overruled lower court decisions that struck down state constitutional amendments passed by popular vote that defined marriage as the union of one man and one woman. The 6th Circuit Court of Appeals ruled that states have the right to set rules for marriage, and that changing a definition of marriage that dates to “the earliest days of human history” is better done through the political process, and not the courts. Its decision breaks ranks with the 9th Circuit, based in San Francisco, the 10th Circuit in Denver, the 4th Circuit in Richmond, Virginia, and the 7th Circuit in Chicago, that have all overturned homosexual “marriage” bans in the West, South, and Midwest since this past summer. The 6th Circuit’s appellate decision follows reasoning used to affirm traditional marriage in Puerto Rico by a federal judge. On these pages, I recently wrote about the federal court ruling last month in Puerto Rico that concluded that there is no Supreme Court precedent that requires the federal judicial redefinition of marriage. Moreover, both the court in Puerto Rico and the 6th Circuit appellate court found that the Supreme Court’s ruling last June on the federal Defense of Marriage Act case supports the authority of each state to make marriage policy.
Although the appellate court’s full decision is available here, there are some excerpts that merit the attention of my readers. One of the stunning hallmarks of this decision is the judicial humility and the respect for the decisions of our citizens. Although often forgotten today, our nation’s founders believed in the ability of virtuous, moral, and reasonable persons to govern themselves, and that a society could be built on limited government and great personal freedom. In the first excerpt from the appellate court decision, it observed:
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit.”
Emphasis added. Then, at pages 19-21, the opinion states:
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States . . . One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. . . . Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them…. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues.
Emphasis added. Finally, at page 21, the appellate court held:
What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.
Much will be written in the coming weeks about the wisdom of this decision, but I was struck by the comment of Alliance Defending Freedom Senior Counsel Byron Babione regarding this decision. Mr. Babione stated:
The people of every state should remain free to affirm marriage as the union of a man and a woman in their laws. As the 6th Circuit rightly concluded, the Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone. The 6th Circuit’s decision is consistent with the U.S. Supreme Court’s acknowledgement in Windsor that marriage law is the business of the states.
As old-fashioned as it might seem to some, the Sixth Circuit Court of Appeals and Federal District Court Judge Juan M. Perez-Gimenez of Puerto Rico may well have gotten this decision right: let the people decide, and not unelected federal judges.